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Environmental Law Updateprovides information on developments in environmental law as it applies to property, probate, and trust matters. The editors of Probate & Property welcome information and suggestions from readers.

Avoiding ESA “Train Wrecks”

The Endangered Species Act of 1973 (the “ESA”) is arguably the most potent of the nation’s environmental laws. There are few other situations in which an environmental issue may halt a project, even one that is ongoing, dead in its tracks. Given its objective of protecting species teetering on the brink of extinction, the ESA leaves very little room for compromise and tilts very heavily in favor of preserving the species. As a result, “train wrecks” are not uncommon—projects that have undergone years of planning are halted at the eleventh hour because of the potential effect on a species. Although stopping the progress of a project may be a worst-case scenario, the simple truth is that ESA issues can be costly and time consuming. Learning to navigate the ESA process and addressing potential ESA issues up front can avoid potential “train wrecks.”

ESA Basics

The ESA provides that any “interested person” may petition the Secretary of the Interior to add a species to, or to remove a species from, the list of endangered and threatened species. The U.S. Fish and Wildlife Service (FWS) determines whether or not to list the species after considering factors such as the destruction of the species’ habitat and potential threats to the species’ continued existence.

In the listing process, FWS is also required to consider the designation of “critical habitat.” Generally speaking, critical habitat includes specific areas that possess the physical or biological features that are essential to the species and that may require special management considerations or protection. The designation of public and private land as “critical habitat” for listed species has been especially contentious because it involves setting aside large areas of land. For example, the critical habitat designation for the red-legged frog is proposed at more than 4 million acres and the critical habitat for the piping plover covers more than 1,600 linear miles of coastline. This gives FWS considerable influence over most land development activities within those areas.

Avoiding a “Take”

Section 9 of the ESA prohibits the “take” of endangered species without specific authorization from FWS. “Take” is broadly defined as to “harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect” a listed species. FWS defines the term “harm” to include “significant habitat modification or degradation where it actually kills or injures wildlife by significantly impairing essential behavioral patterns, including breeding, feeding, or sheltering.” Since the ESA provides for civil or criminal prosecution for illegal takes, it is important to be aware of the potential effect of a project on an endangered species or its habitat.

There may be situations where a “take” of species is an unavoidable result of land-use activities. Under ESA § 10(a), FWS is authorized to issue an Incidental Take Permit (ITP) to a party whose otherwise legal activities might lead to an incidental “take.” This requires preparation of a Habitat Conservation Plan (HCP) and demonstration that the project can be designed so as to minimize the impact on the species to the maximum extent practicable. The process and the minimization and mitigation measures can be costly and time consuming. But an ITP is a viable option if impacts on the species simply cannot be avoided.

Finally, if a project requires a federal permit, receives federal funding, or has any other federal “nexus,” Section 7 of the ESA requires the sponsoring federal agency (e.g., the Army Corps of Engineers for wetlands permits) to consult with FWS to ensure that the project is not likely to jeopardize the continued existence of an endangered species or result in the destruction or modification of its critical habitat. This gives FWS substantial leverage to require changes to the project as it recommends measures to reduce the potential harm to the species.

Preventive Measures

The potential presence of an endangered species or its habitat may have significant effect on many landowners, particularly those with riparian areas and property that has not been developed previously. The ESA process may result in changes to the scope of the project, restrictions on where and when construction may take place, or mitigation requirements, such as setting aside habitat. Possibly the project cannot be built at all. Nevertheless, the expense of a species survey can be minimal in comparison to the cost of a FWS enforcement action.

The key to avoiding an eleventh hour derailment is to be proactive in addressing potential ESA issues up front. A good place to start is FWS itself, which maintains lists of species known to be found in particular areas. Recently FWS has become more willing to work with landowners. The ITP process has been streamlined somewhat, and one can find creative means of striking the proper balance. Species can be avoided or moved; offsite habitat can be purchased and protected; or onsite habitat can be enhanced or created. In the final analysis, a careful due diligence strategy is essential to avoid an endangered species “train wreck.”